NY district judge rules that NSA phone surveillance is legal

Judges are in opposition as to the constitutionality of dragnet data collection.

On Friday, District Judge William Pauley of the Southern District of New York ruled that the National Security Agency’s mass collection of phone records is lawful. The case, which was brought by the American Civil Liberties Union against US Director of National Intelligence James Clapper, was dismissed as the judge ruled that Fourth Amendment protections do not extend to records held by third parties, like telecom companies.

Judge Pauley’s opinion, which began by broadly invoking the events of September 11, 2001, contrasts with the opinion of a DC-based district judge, who ruled earlier this month that the widespread NSA surveillance revealed in June by former NSA contractor Edward Snowden was unconstitutional due to its broad reach. The difference of opinion between the two lower courts make it somewhat more likely that the issue will eventually advance to the Supreme Court, notes the New York Times.

In denying the ACLU a preliminary injunction against the NSA’s data collection and granting the government a dismissal of the case, Judge Pauley used two lines of reasoning. First, he wrote that the ACLU had no standing to argue its case against the government in that court, and second, he wrote that the government is within its rights to collect information about people that is held by third parties. As Pauley wrote :

Regarding the statutory arguments, there is another level of absurdity in this case. The ACLU would never have learned about the section 215 order authorizing collection of telephony metadata related to its telephone numbers but for the unauthorized disclosures by Edward Snowden. Congress did not intend that targets of section 215 orders would ever learn of them. And the statutory scheme also makes clear that Congress intended to preclude suits by targets even if they discovered section 215 orders implicating them. It cannot possibly be that lawbreaking conduct by a government contractor that reveals state secrets—including the means and methods of intelligence gathering—could frustrate Congress's intent. To hold otherwise would spawn mischief: recipients of orders would be subject to section 215's secrecy protocol confining challenges to the FISC, while targets could sue in any federal district court. A target's awareness of section 215 orders does not alter the Congressional calculus. The ACLU's statutory claim must therefore be dismissed.

The judge continued, arguing that "the collection of breathtaking amounts of information unprotected by the Fourth Amendment does not transform that sweep into a Fourth Amendment search."

He also concluded that although people have a different relationship with phones than they did three decades ago, when Smith v. Maryland found that a robbery suspect had no reasonable expectation of privacy regarding the numbers dialed from his phone, new uses for phones didn't change how phones were used in the NSA's collection of metadata. "This Court observes that [peoples'] relationship with their telecommunications providers has not changed and is just as frustrating. Telephones have far more versatility now than when Smith was decided, but this case only concerns their use as telephones. The fact that there are more calls placed does not undermine the Supreme Court's finding that a person has no subjective expectation of privacy in telephony metadata."

The ACLU, for its part, says that it will appeal the decision. “We are extremely disappointed with this decision, which misinterprets the relevant statutes, understates the privacy implications of the government’s surveillance and misapplies a narrow and outdated precedent to read away core constitutional protections,” wrote Jameel Jaffer, ACLU deputy legal director, in a press release on Friday. “We intend to appeal and look forward to making our case in the Second Circuit.”

194 Reader Comments

Wish we could prod politicians into changing the law. Shit like this needs some protection these days. It's not like how it used to be. 3rd parties know more and more about us and our personal lives. Hell, they might know more about us than we do. And under that legal reasoning, the government can pretty much grab it all at will if it feels like it.

So this judge is basically saying that nobody can ever sue because then Congress would be unhappy. That isn't how constitutional rights work. Congress isn't above the Constitution. This judge is incompetent.

“Congress did not intend that targets of section 215 orders would ever learn of them.”

I suppose I may have a gross misinterpretation, but this sounds something like, the law officers have a perfect right to pick the lock, enter, and search my house without a warrant while I’m away, as long as they don’t intend for me to know about it.

So this judge is basically saying that nobody can ever sue because then Congress would be unhappy. That isn't how constitutional rights work. Congress isn't above the Constitution. This judge is incompetent.

Yeah, it took me a bit to try to parse that logic. Congress can pass all the unconstitutional laws they want, and so long as they didn't intend for you to find out about it, you can never challenge the law in court. That disagrees with all the case law ever.

Getting millions of documents out of the facility without the NSA's knowldege, then getting out of the country, then getting asylum in a country out of the US government's reach put's a few in Snowden's column.

I'm thinking alot of what is going on might be some meandering by the mid level judiciary to try to fast track this issue to a supreme court case by the end of 2014. There are certain criteria that need to be met in order to bring a case before the court and disagreement between lower level courts is one of them.

I hope that I am right and we will see the supreme court put a firm clamp on what the NSA can and cannot do from a constitutional level soon. Most people agree that the NSA has gone too far, but the question remains what is that line. Hopefully the Supreme court will put a firm line in the sand sooner rather than later, because I dont think we can trust the other wings of the government to do so.

I do not understand the amount of cognitive dissonance it takes to reach this kind of decision when he basically says the ability to have the phone records and complete internet access to Americans emails is not violating the 4th amendment.

My worry is not just about what Snowden has disclosed, but what has not been disclosed or what the NSA feels like it can get away with as the technology evolves and if the SCOTUS says this is all legal and good... The inevitable SCOTUS decision is going to be a very important.

Did this judge really say that since Snowden illegally disclosed the NSA's crimes, the judicial system is unable to act on that information so they don't "spawn mischief?" I'm glad this guy ruled contrary to the other judge's opinion, which will get the whole matter moved to a higher court sooner, but that argument seems about as bizarre as it could be.

Getting millions of documents out of the facility without the NSA's knowldege, then getting out of the country, then getting asylum in a country out of the US government's reach put's a few in Snowden's column.

The whole thing reads from beginning to now like a soap opera. Tune in tomorrow for as the US turns.

The judge reiterated that telephony communication is not protected, as it is owned by a third party, being the phone company. One solution is to devise a communication method that bypasses the phone company, preferably encrypted...of course, this would be terribly inconvenient for the vast majority of the population.

Getting millions of documents out of the facility without the NSA's knowldege, then getting out of the country, then getting asylum in a country out of the US government's reach put's a few in Snowden's column.

The whole thing reads from beginning to now like a soap opera. Tune in tomorrow for as the US turns.

It would be entertaining if the constitutional rights of hundreds of millions of people didn't hang in the balance.

Aside from the fact that your scorekeeping overlooks the earlier ruling that disagrees totally with this one, I don't think it matters if the NSA snooping is legal or not. If it's illegal, we should stop it, and if it's legal, we should change the law.

But I'm not sure it matters, because tech companies and foreign governments are taking this into their own hands by strengthening encryption and other means. And it seems that now that the NSA's metadata is widely known, it'll become even more useless than it's already admitted to be.

This is only a district court ruling. It will be interesting what happens on appeal to the Circuit and then the Supreme Court. It's almost certain that they will grant cert. The only question is when we will have a ruling. 2015 seems most likely given that this still has to go through the circuits.

“Congress did not intend that targets of section 215 orders would ever learn of them.”

I suppose I may have a gross misinterpretation, but this sounds something like, the law officers have a perfect right to pick the lock, enter, and search my house without a warrant while I’m away, as long as they don’t intend for me to know about it.

No, it sounds like that's pretty much the first part of his ruling. The second part is that the NSA may lawfully access anything about you that a third party possesses. Think for a second about that. So, having no grounds for a warrant of any kind, the NSA should be allowed to look at your internet activity, your e-mail stored on a server somewhere, your finances ... pretty much everything you don't physically keep yourself. Nice.

I'm thinking alot of what is going on might be some meandering by the mid level judiciary to try to fast track this issue to a supreme court case by the end of 2014. There are certain criteria that need to be met in order to bring a case before the court and disagreement between lower level courts is one of them.

I hope that I am right and we will see the supreme court put a firm clamp on what the NSA can and cannot do from a constitutional level soon. Most people agree that the NSA has gone too far, but the question remains what is that line. Hopefully the Supreme court will put a firm line in the sand sooner rather than later, because I dont think we can trust the other wings of the government to do so.

I do not want this fast-tracked...

I want it to play out.

What we need is for someone to legally get/purchase the meta-data of all nine judges and extrapolate.

If persons, for example Google, Yahoo, etc want this to end, all they need do is reveal just how exposing third party information is on those that openly defend its use.

Google Yahoo and Facebook all say they are appalled but the bird is really in their hands.

The judge reiterated that telephony communication is not protected, as it is owned by a third party, being the phone company. One solution is to devise a communication method that bypasses the phone company, preferably encrypted...of course, this would be terribly inconvenient for the vast majority of the population.

The problem here is that there is still a warrant to acquire the info AFAIK. Any warrant must follow the guidelines of the 4th Amendment which requires specific search criteria. The fact that this is a mass collection of info should violate the 4th all on it's own.

So this judge is basically saying that nobody can ever sue because then Congress would be unhappy. That isn't how constitutional rights work. Congress isn't above the Constitution. This judge is incompetent.

I'm looking at the quote, and interpreting it as him thinking "Congress didn't want this ruled unconstitutional, so it's constitutional". If Congress passed a bill saying "the bill of rights is null and void and this bill is constitutional", I worry he might actually think that was constitutional.

I would think, a NSA judge would be a bit biased. (I would not blame them.) With any luck the decision will be reversed at the Supreme Court.

The same Supreme Court that gave you Citizens United? Don't count on it.

Citizens United is a bit of a non sequitur, but do note that the ACLU took the same position as the Supreme Court did on Citizens United, that Section 203 of the Bipartisan Campaign Reform Act of 2002 should have been struck down, and unions and corporations (both non-profit and for-profit) should have First Amendment rights. You can read the ACLU's brief here.

I hope that the Supreme Court also agrees with the ACLU on this case, just as it did with Citizens United. In fact, much of the same logic is relevant. If you want to claim that you don't have First Amendment rights once you band together in a union or corporation, then it's easy for the government to claim that you don't have Fourth Amendment rights once your data is given to a corporation either.

I'm not sure that party predicts much here, either. Note that this judge, who upheld the spying, was appointed by President Clinton. The judge who said that the spying was unconstitutional, Judge Leon, was appointed by President George W. Bush.

I've always found it curious how these guys support this kind of unconstitutional crap until it happens to them. I really would love to see the dirt a team of private investigators and real hackers can dig up on these--- gentlemen--- in Congress who support these activities. Suddenly it won't be such an awesome thing, would it?

I would think, a NSA judge would be a bit biased. (I would not blame them.) With any luck the decision will be reversed at the Supreme Court.

The same Supreme Court that gave you Citizens United? Don't count on it.

Citizens United is a bit of a non sequitur, but do note that the ACLU took the same position as the Supreme Court did on Citizens United, that Section 203 of the Bipartisan Campaign Reform Act of 2002 should have been struck down, and unions and corporations (both non-profit and for-profit) should have First Amendment rights. You can read the ACLU's brief here.

I hope that the Supreme Court also agrees with the ACLU on this case, just as it did with Citizens United. In fact, much of the same logic is relevant. If you want to claim that you don't have First Amendment rights once you band together in a union or corporation, then it's easy for the government to claim that you don't have Fourth Amendment rights once your data is given to a corporation either.

I'm not sure that party predicts much here, either. Note that this judge, who upheld the spying, was appointed by President Clinton. The judge who said that the spying was unconstitutional, Judge Leon, was appointed by President George W. Bush.

Point being, don't assume that the Supreme Court is on the citizen's side. It doesn't matter that the ACLU agreed, the Citizens United case isn't pro-citizen, it's pro-corporation. Spending money on elections doesn't help anyone exception corporations, the mega-rich and politicians. It doesn't help 99% of the population

So this judge is basically saying that nobody can ever sue because then Congress would be unhappy. That isn't how constitutional rights work. Congress isn't above the Constitution. This judge is incompetent.

Yeah, it took me a bit to try to parse that logic. Congress can pass all the unconstitutional laws they want, and so long as they didn't intend for you to find out about it, you can never challenge the law in court. That disagrees with all the case law ever.

Yeah, that was what grabbed my attention as well. I have yet to read the order in its entirety, which I do in such cases, but that bit is absurd on its face. I can't believe he actually put it in there; it's all but begging to be reversed for flawed reasoning. Judges, after all, have to use sound reasoning in order to arrive at their judicial rulings, grounded in valid case law. I can't imagine that using Congressional intent to permanently hide those whose rights may have been violated from ever finding out will stand the test of time. Congress and their intent is not the highest law in the land; the Constitution is.

There really should be a process for fast tracking cases like this to the Supreme Court. That's obviously where it's all headed unless Congress changes the laws regarding the NSA data collection. Why waste all the time and tax dollars dragging each and every case through lower courts who are bound to have wildly varying opinions about all of it? It's damn inefficient!

“Congress did not intend that targets of section 215 orders would ever learn of them.”

I suppose I may have a gross misinterpretation, but this sounds something like, the law officers have a perfect right to pick the lock, enter, and search my house without a warrant while I’m away, as long as they don’t intend for me to know about it.

That’s pretty much my take too. You can’t sue us for our secret blanket surveillance because you were never supposed to know about it….

The judge reiterated that telephony communication is not protected, as it is owned by a third party, being the phone company. One solution is to devise a communication method that bypasses the phone company, preferably encrypted...of course, this would be terribly inconvenient for the vast majority of the population.

The problem with that is all telecommunication companies (ie, voice service) companies are required by law to provide a method for performing trace logging (who calls who, ie, metadata logging), and to provide a method for accessing the voice communication upon production of a warrant. If you set up a phone company (voice) that didn't have these capabilities, the FCC shuts your company down.

I would think, a NSA judge would be a bit biased. (I would not blame them.) With any luck the decision will be reversed at the Supreme Court.

The same Supreme Court that gave you Citizens United? Don't count on it.

Citizens United is a bit of a non sequitur, but do note that the ACLU took the same position as the Supreme Court did on Citizens United, that Section 203 of the Bipartisan Campaign Reform Act of 2002 should have been struck down, and unions and corporations (both non-profit and for-profit) should have First Amendment rights. You can read the ACLU's brief here.

I hope that the Supreme Court also agrees with the ACLU on this case, just as it did with Citizens United. In fact, much of the same logic is relevant. If you want to claim that you don't have First Amendment rights once you band together in a union or corporation, then it's easy for the government to claim that you don't have Fourth Amendment rights once your data is given to a corporation either.

I'm not sure that party predicts much here, either. Note that this judge, who upheld the spying, was appointed by President Clinton. The judge who said that the spying was unconstitutional, Judge Leon, was appointed by President George W. Bush.

The problem with Citizens United was never corporate personhood, although I think that could be taken somewhat less literally than it is. It was the ruling that money equals speech. That just made for a less pithy bumper sticker. If money equals speech, then all election finance laws are effectively null, allowing a single really rich corporation to have an undue influence on the electorate. And since anonymous speech (money) is also constitutionally protected, they can do so without facing any consequences for lying to voters.

If, instead, we rule that money isn't speech, campaign finance laws are constitutional, and super PACs can't exist anymore. Which seems better for everyone. And it doesn't mean that corporations, as legal persons, can't endorse a candidate or attempt to sway voters. It means that when doing so they can't be anonymous, and that there are the same donation limits that existed pre-CU.

What country's constitution is Pauley using? The ruling fails to recognize that there is a vast amount of data about anyone held legitimately by third parties from the bank, merchants, utilities, etc. who are using the information for their benefit as well as for customers. This ruling says any data held by third party can be perused by any government official without a warrant for any reason at all. If a warrant is required, then the official has to provide a reason for the wanting the record to a court.

There really should be a process for fast tracking cases like this to the Supreme Court. That's obviously where it's all headed unless Congress changes the laws regarding the NSA data collection. Why waste all the time and tax dollars dragging each and every case through lower courts who are bound to have wildly varying opinions about all of it? It's damn inefficient!

Actually, you can petition SCOTUS for a writ of certiorari at any time after a judicial decision has been rendered, even before an appeals court has a chance to rule, if there's good enough public interest reason for them to do so. They may well refuse (as they should, in most cases) but it's an option.